Article VIII. Hearsay

219

Rule 803: Hearsay Exceptions.

The following are not excluded by the hearsay rule:

(1) [Reserved.]

Advisory Commission Comments.

The proposed rules contain no present sense impression exception.

(1.1) Prior Statement of Identification by Witness. A statement of identification of a person made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.

Advisory Commission Comments.

Tennessee recognizes declarations of eye-witness identification as an exception to hearsay exclusion, and the rule generally follows Tennessee precedent. Note that the declarant must also be a witness, affording at least delayed cross-examination as to the extrajudicial statement. Note also, however, that witnesses other than the declarant may testify about the identifying declaration. Perhaps the rule changes Tennessee law in this respect. See Blankenship v. State, 432 S.W.2d 679, 684 (Tenn. Crim. App. 1967).

(1.2) Admission by Party-Opponent. A statement offered against a party that is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement in which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by an agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship under circumstances qualifying the statement as one against the declarant's interest regardless of declarant's availability, or (E) a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy, or (F) a statement by a person in privity of estate with the party. An admission is not excluded merely because the statement is in the form of an opinion. Statements admissible under this exception are not conclusive.

Advisory Commission Comments.

Most of the rule embodies Tennessee common law. In part (D), though, present law is extended to clearly allow an agent's post-accident declarations to come in against the principal if the subject matter of the declarations is "within the scope of the agency." A driver who tells bystanders about driving mistakes may face those declarations in court, and likewise the driver's employer may have to deal with these vicarious admissions at trial. In the absence of a rule such as that proposed, Tennessee has excluded such declarations. Citizens' Street R.R. Co. v. Howard, 102 Tenn. 474, 52 S.W. 864 (1899).

Other requirements for vicarious admissions are (1) that the agency relationship exist at the time of a declaration and (2) that the declarant's statement be against his or her own interest. The latter proviso is to prevent agents and employees from gratuitously harming superiors for their own benefit.

The rule at part (F) retains common law admissibility of declarations by predecessors in title.

The final sentence is intended to abolish the distinction between evidentiary (unsworn) and judicial (sworn) admissions. Unless made conclusive by statute or another court rule, such as Tenn. R. Civ. P. 36.02 on requests for admission, party admissions are subject to being explained away by contradictory proof. But the final sentence is not intended to affect the doctrine of judicial estoppel. That doctrine involves two separate lawsuits and bars contradiction by a party in the second suit of that party’s sworn statement in the first suit. See Marcus v. Marcus, 993 S.W.2d 596 (Tenn. 1999). In contrast the last sentence of this evidence rule contemplates a single lawsuit in which a party’s admissions, sworn or not, can be contradicted.

This rule changes the law as stated in Tennessee decisions excluding party admissions phrased in terms of fault. See, e.g., King v. Leeman, 30 Tenn. App. 206, 204 S.W.2d 384 (1946), excluding the plaintiff 's admission that a driver other than the defendant was "to blame." Such an admission, even though in opinion form, is competent evidence under Rule 803(1.2).

(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Advisory Commission Comments.

The rule restates Tennessee law.

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Advisory Commission Comments.

This is the state of mind hearsay exception, long recognized by Tennessee courts. Combining the hearsay exception with relevancy principles, declarations of mental state will be admissible to prove mental state at issue or subsequent conduct consistent with that mental state.

Normally such declarations are inadmissible to prove past conduct. Most jurisdictions, however, admit express mental state to prove the prior making or revocation of a will. Tennessee is in the minority by excluding the evidence in wills cases. Hickey v. Beeler, 180 Tenn. 31, 171 S.W.2d 277 (1943). The proposal would change the Hickey result and make declarations of mental state competent to prove past conduct in lawsuits concerning wills.

The Commission contemplates that only the declarant's conduct, not some third party's conduct, is provable by this hearsay exception. It views decisions such as Ford v. State, 184 Tenn. 443, 201 S.W.2d 539 (1945), as based on faulty analysis.

In addition to declarations of mental state, this proposal also governs declarations of present ("then existing") physical condition. The declaration need not be made to a doctor; any witness who overheard the hearsay statement could repeat it in court under this exception.

(4) Statements for Purposes of Medical Diagnosis and Treatment. Statements made for purposes of medical diagnosis and treatment describing medical history; past or present symptoms, pain, or sensations; or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment.

Advisory Commission Comments.

The proposal continues the Tennessee position of limiting declarations of past physical condition to those made to treating doctors. See Gulf Refining Co. v. Frazier, 15 Tenn. App. 662, 688-95 (1932). The declaration must be for both diagnosis and treatment. Declarations of present bodily condition fall within Rule 803(3).

It is important to distinguish declarations of bodily condition, admissible as substantive evidence, from similar declarations used by a physician to support an expert opinion. The latter are not evidence, but rather give weight to the opinion —which is the evidence. T.C.A. § 24-7-114; State v. Holt, 222 Tenn. 721, 440 S.W.2d 591 (1969); see Rule 703.

(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Advisory Commission Comments.

The proposed rule recognizes the traditional Tennessee hearsay exception for past recollection recorded, but it expands common law in two respects. It allows the admissibility of the contents of a document reflecting past recollection recorded even though the witness has some recollection of the recorded facts but not enough to testify "fully and accurately." Second, it permits the witness to adopt a record made by another not acting under the witness's supervision. The safeguard is the requirement of adoption at the time when the witness could vouch for the document's correctness.

The proposal restricts the common law by confining presentation of the document to reading the contents rather than exhibiting the paper to the jury. Tennessee law presently permits the writing to be handed to the jurors and, in civil cases, to be taken to the jury room. T.C.A. § 20-9-510. This change is designed to prevent the jury from giving more weight to this hearsay evidence than would have been given to the declarant's live testimony had the declarant been able to testify from present memory.

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses made at or near the time by or from information transmitted by a person with knowledge and a business duty to record or transmit if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with Rule 902(11) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, profession, occupation, and calling of every kind, whether or not conducted for profit. [As amended by order filed January 23, 2001, effective July 1, 2001.]

Advisory Commission Comments.

This rule essentially is the same as the Uniform Business Records as Evidence Act, T.C.A. § 24-7-111 [repealed]. To avoid interpretive mistakes such as that in Wheeler v. Cain, 62 Tenn. App. 126, 459 S.W.2d 618 (1970), the proposal specifically requires that the declarant have "a business duty to record or transmit" information. Without that duty, a business record would lack the trustworthiness necessary to carve out a hearsay exception.

Amended Rule 803(6) in conjunction with new Rule 902(11) eliminates the need to call the custodian of records as a trial witness. Such a procedure has been in effect by statute for medical business records. See T.C.A. §§24-9-101(8) & 68-11-401 et seq.

(7) [Reserved.]

Advisory Commission Comments.

It is doubtful that the absence of a business entry poses a hearsay problem. Consequently, although F.R.Evid. 803(7) contains a purported exception, the Commission found no need for an exception.

(8) Public Records and Reports. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, records, reports, statements, or data compilations in any form of public offices or agencies setting forth the activities of the office or agency or matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel. [As amended by order filed January 25, 1991, effective July 1, 1991.]

Advisory Commission Comments.

The rule admits records of public officials acting under an official duty to report accurately. This is the traditional official records hearsay exception. T.R.C.P. 44; T.C.A. §§ 24-6-105 —107.

Police reports are expressly excluded, just as they are under current law in some instances. See McBee v. Williams, 56 Tenn. App. 232, 405 S.W.2d 668 (1966), construing T.C.A. § 55-10-114(b) to exclude accident reports. See also T.C.A. § 55-12-108(b), excluding Department of Safety determinations of fault in automobile accidents.

[Deleted in 1993: As to other statutory modifications and decisional embellishments, see Tennessee Law of Evidence §§ 82-86.]

The Commission borrowed language from subsections (A) and (B) of F.R.Evid. 803(8), but it expressly rejected federal subsection (C) on factual findings from investigations. The term "activities" in proposed subsection (A) is limited to the internal operations of a public office, making this category of official records much like business records of a private organization. The introductory language cautions that sources of information must be trustworthy.

Advisory Commission Comments [1991].

This is a technical correction.

Advisory Commission Comment [1993].

Delete the third paragraph of the comment.

(9) Records of Vital Statistics. Records or data compilations in any form of births, fetal deaths, deaths, marriages, or divorces, if the report was made to a public office pursuant to requirements of law. [As amended by order filed January 25, 1991, effective July 1, 1991, and February 13, 1991, effective July 1, 1991.]

Advisory Commission Comments.

Vital statistics, a particular variety of official records, come in under this exception. Tennessee law is unchanged. T.C.A. § 68-3-101 et seq.

Advisory Commission Comments [1991].

The amendment adds divorce records to the list of vital statistics.

(10) [Reserved.]

Advisory Commission Comments.

Although T.C.A. § 24-6-107 permits a filing officer to certify complete absence of an alleged record in the files, there is no Tennessee authority for making this absence a hearsay exception. Moreover, since the Commission believes that the absence of an entry in a public record is not a hearsay statement, no hearsay exception is needed. F.R.Evid. 803(10) purports to state a hearsay exception.

(11) [Reserved.]

Advisory Commission Comments.

The Commission did not believe records of religious organizations were uniformly reliable enough to satisfy hearsay exception requirements.

(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament made by a member of the clergy, a public official, or another person authorized by the rules or practices of a religious organization or by law to perform the act certified and purporting to have been issued at the time of the act or within a reasonable time thereafter.

Advisory Commission Comments.

This exception is similar to those in Rules 803(8) and (9). Marriage and baptism necessarily involve religious or official participation, and the religious or public record is evidence of the fact of baptism or marriage.

(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, engravings on rings, inscriptions on family portraits, engravings on burial urns, crypts, tombstones, or the like. [As amended by order filed January 25, 1991, effective July 1, 1991.]

Advisory Commission Comments.

While not always trustworthy, family records of the kinds described here may be the only evidence available. In any event, once admitted through this hearsay exception, the facts can be rebutted.

Advisory Commission Comments [1991].

This is a technical amendment.

(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property as proof of the contents of the original recorded document and its execution and delivery by each person by whom it purports to have been executed if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

Advisory Commission Comments.

This exception is a narrow one. It admits only three facts about a recorded deed, financing statement, or other property instrument: (1) the contents of a certified copy are identical to the filed original, (2) the original was executed, and (3) the original was delivered (if that step is necessary).

(15) [Reserved.]

Advisory Commission Comments.

Statements of "fact" in a warranty deed, trust deed, or security agreement are not trustworthy enough to justify admissibility as truth. Consequently, the Commission rejected the contrary view in F.R.Evid. 803(15).

(16) Statements in Ancient Documents Affecting an Interest in Property. Statements in a document in existence thirty years or more purporting to establish or affect an interest in property, the authenticity of which is established.

Advisory Commission Comments.

If a document —be it a deed, security agreement, or other instrument —affects a property interest, and if it is thirty years old and authentic, the trier of fact may take as true statements within the document. Proposed Rule 901(b) makes thirty years of age one of the requisites for authentication, but the offering lawyer must also establish normal custody and lack of suspicion.

Tennessee decisions treat admissibility of ancient deeds, but the proposed exception updates the law to cover other property instruments. Otherwise, the rule is consistent with present Tennessee law. It departs markedly from F.R.Evid. 803(16) which provides a hearsay exception for any (not just property) documents at least twenty years old.

(17) Market Reports and Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

Learned treatises can be used to impeach an expert but are not themselves admissible to prove the truth of their contents. No good reason exists to permit hearsay to be taken as true just because it is written in books. F.R.Evid. 803(18) is contra.

(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage or among associates or in the community concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

Advisory Commission Comments.

The rule admits reputation to prove pedigree, and that is the common law and Tennessee position. To introduce an individual's declaration to prove pedigree, see Rule 804(b)(4).

The proposal contains no requirement that the reputation have existed before the controversy developed.

(20) Reputation Concerning Ancient Boundaries. Reputation in a community, arising before the controversy and existing thirty years, as to the boundaries of or customs affecting lands in the community.

Advisory Commission Comments.

The rule mirrors current Tennessee law.

(21) Reputation As to Character. Reputation of a person's character among associates or in the community.

Advisory Commission Comments.

Character evidence primarily involves relevancy issues, but it requires a hearsay exception as well to gain admittance. This hearsay exception is standard.

The exception satisfies the hearsay exclusionary rule, but other evidence principles must be satisfied as well. See Proposed Rules 404, 405, and 408.

(22) Judgment of Previous Conviction. Evidence of a final judgment adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year to prove any fact essential to sustain the judgment, but not including, when offered by the prosecution in a criminal case for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

The Commission believed that a jury's finding beyond a reasonable doubt that a serious crime was committed should be admitted in a later civil or criminal trial to prove the underlying facts necessary to the judgment of conviction. Because facts proving minor crimes may not have been developed at trial, the rule would exclude judgments for lesser infractions from this hearsay exception.

(23) Judgment As to Personal or Family History or Boundaries. Judgments as proof of matters of personal or family history or boundaries, which matters were essential to the judgment.

Advisory Commission Comments.

The rule makes civil and criminal judgments admissible to prove boundaries and personal or family history. Reliability is relatively high, and need is great.

(24) [Reserved.]

Advisory Commission Comments.

The proposed rules contain no residual exception such as that in Fed.R.Evid. 803 (24).

(25) Children’s Statements. Provided that the circumstances indicate trustworthiness, statements about abuse or neglect made by a child alleged to be the victim of physical, sexual, or psychological abuse or neglect, offered in a civil action concerning issues of dependency and neglect pursuant to Tenn. Code Ann. § 37-1-102(b)(12), issues concerning severe child abuse pursuant to Tenn. Code Ann. § 37-1-102(b)(21), or issues concerning termination of parental rights pursuant to Tenn. Code Ann. § 37-1-147 and Tenn. Code Ann. § 36-1-113, and statements about abuse or neglect made by a child alleged to be the victim of physical, sexual, or psychological abuse offered in a civil trial relating to custody, shared parenting, or visitation. Declarants of age thirteen or older at the time of the hearing must testify unless unavailable as defined by Rule 804(a); otherwise this exception is inapplicable to their extrajudicial statements.

Advisory Commission Comments.

Rule 803(25) is a narrow exception. It applies only if the specified issues are material. Even then it is inapplicable if the minor declarant has reached age thirteen by the time of hearing and is available as a witness but does not testify.

Declarations under this hearsay exception are inadmissible if "circumstances indicate lack of trustworthiness." Courts should carefully consider the motivation of particular minor declarants and also the motivation of some adults to influence children. Also worthy of consideration is the presence or absence of evidence corroborating the hearsay statement. As with all hearsay offered at trial, balancing under Rule 403 is appropriate.

The exception is not limited to juvenile court hearings, although it replaces a portion of T.R.Juv.P. 28(c). This new exception applies, for example, in a circuit court trial concerning the itemized issues. The exception is limited by its terms to civil actions as opposed to criminal prosecutions.

The bench and bar should keep in mind that other exceptions in Rule 803 and 804 may serve to admit children's hearsay declarations. Examples include excited utterances, declarations of mental state, declarations of physical condition, or former testimony. Also, some extrajudicial statements are relevant on a nonhearsay basis.

Rule 803(25) is amended to extend the children’s statements exception to some issues in a divorce action tried in circuit or chancery courts. Note that a condition precedent to admissibility in any court, including juvenile, is that “the circumstances indicate trustworthiness” of the hearsay.

Another change is to incorporate revisions in statutory citations.

(26) Prior Inconsistent Statements of a Testifying Witness. A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness. [As amended by order filed January 28, 1993, and effective July 1, 1993; by order filed January 31, 2003, and effective July 1, 2003; and by order filed January 8, 2009, and effective July 1, 2009.]

Advisory Commission Comment [2009].

Subsection (26) alters Tennessee law by permitting some prior inconsistent statements to be treated as substantive evidence. Many other jurisdictions have adopted this approach to address circumstances where witnesses suddenly claim a lack of memory in light of external threats of violence which cannot be directly attributed to a party, for example. This rule incorporates several safeguards to assure that the prior inconsistent statements are both reliable and authentic.

To be considered as substantive evidence the statement must first meet the traditionalconditions of admissibility which include the procedural aspects of inconsistent statements as addressed in Rule 61 3. This reference also makes clear that only prior inconsistent statements, and not consistent statements, are within the ambit of this rule.

Assuming the inconsistent statement is otherwise admissible to impeach the testifying witness, the party may then seek to have the statement treated as substantive evidence by complying with the rule's other requirements. Other rules address authenticity of documents and recordings which clearly apply here. See e.g. Rule 1001. However, this rule contains additional express requirements regarding the form of the prior statement so that the jury is assured that the statement contains the actual "words" of the witness on a prior occasion. For example the prior statement must be an audio or video recorded statement. A "police report" or insurance investigator's "transcription" of the recorded statement would not qualify since it is not literally the witness's own words contained on audio or video media.

If not recorded, the prior statement can be in written form (created by the witness or by another) but then must be signed by the witness. The commission intends that the "signed" requirement must be equated with an actual signature as opposed to some email document which happens to have the witness's name on the address. Finally, the rule permits a prior statement to be treated as substantive evidence if given under oath.

The rule requires that the party seeking to have the statement treated as substantive evidence request a hearing out of the presence of the jury to satisfy the judge "by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness." This is to prevent fraud such as where a parent tape records a child after training the child to say "bad things" about the other parent in anticipation of a custody dispute. Rules 703 (Bases of Opinion Testimony by Experts) and 803(6) (Records of Regularly Conducted Activity) contain similar judicial gate-keeping requirements.